June 12, 2003

Eugene Volokh’s latest article goes into much more than that, but that’s as far as I’ll focus here. This post will be part cliff notes, part commentary.

Volokh starts by arguing that copyright, trademark, and the “right of publicity” are content-based, rather than content-neutral. The hardest sell is copyright law, but even it prohibits producing and distriubting works that are substantially similar to the content of prior speech. He also notes that the fair use exception is based in part on content, and, following analogous cases, this implies that copyright law as a whole is content based. (As Alex suggests, you might want to think about this in terms of Bunner.)

Next, Volokh explains that, even if you treat copyright laws as content-neutral, they don’t pass typical restrictions that focus on time, place, and manner of speech and require “ample alternative channels.” Copyright law bars entire use of certain words. Even if you can say different words to express a similar meaning, you’re never going to get exactly the same expression.

So, if copyright laws generally won’t pass muster under the first amendment, how are they constitutional? Obviously, because of the copyright clause.

Volokh then turns to Eldred (without delving into the case’s first amendment reasoning, probably because the court went into very little detail). Though Eldred stands for copyright as exempt from most first amendment scrutiny, it provides two exceptions: restrictions on the ideas/facts (as opposed to expression), and laws that eliminate constitutionally protected fair use.

What can we derive from this? First, copyright law provides no help for fact based laws (eg, database protection laws, property right in private info). Sometimes the facts will matter, like in a contributory infringement context when pointing to infringing material might be enough to get you in trouble (even though you’re just publishing the factual location of the material). But this is pretty iffy, especially when you throw the DMCA into the mix.

Second, as explored by Professor Balkin, the fair use exception might poke a hole in the DMCA. To make this argument work, you’d have to say that First Amendment protects certain types of conduct, since that’s what the DMCA regulates; Volokh makes an analogy with arguments that say restricting news gathering is basically the same as restricting news reporting, which is largely unconstitutional. But the court hasn’t said a lot about this issue.

Third, if you’re going to use copyright law as an analogy for trade secret law, you’d have to note the fair use exception and the right to publish facts. This would show dissimilarity between the two laws. Think about Bunner here. If you try to analogize that trade secret prohibition to copyright law, then you’ve got to ask, does the trade secret argument have no exceptions? If it doesn’t, then the analogy fails.

Volokh suggests that this only binds constitutionally protected fair use. According to Volokh, the judiciary has only extended this as far as “for scholarship and comment, and even for parody.” The wide-range of fair uses we know and love extend from statute, not the constitution. I think the DMCA would probably not be found unconstitutional along these lines because it was passed after the Copyright Act of 1976, and thus they’d try to read the DMCA as affirming a limit on that statute – they’d accept the latter statute over the earlier one if they contradict each other. Remember: those constitutional fair uses are the closest thing you have to fair use rights. The others can be snatched up by Congress whenever they please.

Or maybe not – how far would the Court allow them to take it? Would they really let copyright law control every single way you make personal, private, non-commercial use of content? Volokh mentions the uncertainty regarding other fair uses. Probably, the buck would have to stop somewhere further than scholarship, comment, and parody. But it wouldn’t go to much further, because the Court would be hesitant to make too broad of a statement on an issue that’s largely supposed to be Congress’ domain.

One could also argue that Volokh is wrong to imply that the “traditional contours of copyright” does not include what came out of the 1976 Act. Indeed, Ginsburg cites title 17 section 107, not the constitutional caselaw, first. But, what sort of First Amendment analysis would come from that?

I wonder: as Balkin suggested, there might also be a public domain exception. I know, I know – that sounds totally un-Eldred. But think of it this way: Congress still doesn’t have the power to pass an infinite copyright. One could argue that the public domain is part of copyright’s traditional contours and then, cringing, you could say that Eldred affirms that the traditional contours are still important by saying that infinite copyrights are not legit. You still have to signal that a work will fall into the public domain at some point in the future, even if you back away from that deadline later. By effectively creating a perpetual copyright, the DMCA violates this traditional contour. [Update - Note: I know, I've brought this up before and expressed my doubts. But, Volokh's article made me want to restate the possibility.]

In the next section, Volokh delves into what this means for procedural rules in copyright cases. First, he argues that the standard should be the same as in other first amendment cases. He sees no reason for treating non-fair uses different than obscenity or libel law. In the latter cases, the burden is on the plaintiff; however, in copyright infringement cases, the burden is on the fair user to make his affirmative defense.

Now that’s an interesting point. This would totally change fair use arguments. It’d be less of a longshot for people, because they wouldn’t have to shoulder all the burden. I’ll try to think more about this and read up on what could change. (Volokh cites a Neil Netanel article on the subject, among other interesting sounding Netanel pieces.)

Volokh made one other point that caught my attention. He asserts, “If [Eldred is] seen as arguing that the copyright exception is legitimate because copied speech is substantially less valuable than other speech—then the text seems mistaken.” The end of Ginsburg’s opinion implies this. Both copies and detrivate works obviously can have quite a lot of values for the speaker and potential listeners. Hopefully, the Court will heed Volokh’s concerns.